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It is not often that the tension before the handing down of a Supreme Court judgment is likened to a spaghetti western but this is the metaphor that occurred to John Forsyth writing in today’s Scotsman about tomorrow’s judgment in the case of Cadder v HM Advocate:

“Call this one “A Fistful of Writs”, or maybe “A Man called Cadder”. There’s a heavy, oppressive stillness in the air. At first sight it appears all the main characters in the scene are asleep, distracted or otherwise indolent. No-one is speaking“

The case was heard by a seven judge bench on 24 and 25 May 2010.  It  is the most important Scots criminal justice case which the court has heard so far. The issue is whether the use of material obtained in a police interview without legal representation renders a subsequent trial unfair contrary to ECHR, art 6.  The details are in our case preview.    The same issue had been decided in October 2009 by a seven judge bench of the High Court of Justiciary in McLean v Her Majesty’s Advocate ([2009] HCJAC 97).   That court had held that the Scots procedures were compatible with art 6 but it appears that the Supreme Court may take a different view.  The “Scotsman” records that

“The Lord Advocate was reportedly shaken by the perception that the arguments that were so persuasive before seven judges in Edinburgh appeared to cut no ice with the … judges in front of her in London.   Within days, she had issued interim guidelines to instruct police to advise suspects that they could take advice from their own solicitor or a duty solicitor prior to being interviewed”

The article points out that, if the decision goes in Mr Cadder’s favour, steps will have to be taken to limit the damage.  According to the “Scotsman”

“it is known parliamentary drafters have come up with various formulations of emergency legislation that can be jet-propelled into the Scottish Parliament in attempt to limit the number and cost of appeals or claims for compensation“

This is, however, likely to be a difficult piece of legislation to frame as it would prevent individuals who had a lawful Convention claim from pursuing it.

The Scotsman concludes by returning to the spaghetti western theme

“As in every Spaghetti Western, the scene is completed by the undertaker rubbing his hands in anticipation of a surge in business and the prisoners in their cells working out what it will mean for them when the gunsmoke clears and the bodies are counted“.

Tomorrow’s judgment is awaited with interest.